Another Blow for Freedom from California

Posted on May 13, 2016

The 9th Circuit U.S. Court of Appeals recently ruled that there is no constitutional right to carry a concealed firearm in America. Since there is no right to carry, a law that prevents one from doing so is perfectly fine against the 2d Amendment said the Court. Thankfully, this decision applies only to states within the 9th Circuit – (CA, MT, ID, WA, OR, HI, AK, AZ, NV), but no doubt this is going to the U.S. Supreme Court. Knowing this, and being down a justice, the upcoming presidential election just took on a new importance for those who care about personal freedom.

The case started when a resident of San Diego County had the audacity to ask the San Diego County Sheriff to issue him a concealed carry permit, listing a desire to protect himself as the legal grounds. California prohibits open carry, making concealed carry the only lawful way to possess a firearm outside the home for self-defense. But one can only carry a concealed handgun if they have a permit, and one could obtain a permit only from the County Sheriff, and then only if the citizen could establish “good cause” for it. In San Diego County, their rules specifically said that self-defense isn’t good cause, so Peruta struck out. That meant Peruta either had to break the law and carry illegally (like a criminal), or render himself defenseless. Dissatisfied with those choices, he filed a lawsuit against the County alleging their rule against issuing permits for self-defense illegally restricted his constitutional right to keep and bear arms – a right the 2d Amendment is supposed to guarantee will not be infringed.

Peruta never said the State couldn’t require a permit to carry, or that they couldn’t impose qualifications on the person who sought the permit, or that they couldn’t restrict the places where people could carry guns. All he wanted was a permit that he was otherwise qualified to have – except for the fact he wanted it for self-defense and the government said that wasn’t a good enough reason. The 9th Circuit Court of Appeals said: “We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” If there is no constitutional right to carry a concealed firearm, then the Constitution (namely the Second Amendment) has nothing to protect from being infringed, and the government is free to restrict that freedom on whatever basis they choose.

It’s important to remember the Constitution doesn’t grant rights or give freedom. Our individual rights and our freedom come from God. The Constitution is what protects our God given rights from being illegally infringed by the government. It doesn’t matter whether that right is the right to bear arms for self-defense, the right to speak, the right to assemble, or the right to marry the person of your choice as the U.S. Supreme Court recognized less than a year ago.

When the Second Amendment says “…the right to keep and bear arms shall not be infringed,” it means the God given right of an individual to keep and bear arms shall not be infringed by that individual’s government. “Government” in this situation because of the 14th amendment means any government – federal, state or local. It would be a different matter if the Peruta court recognized the right, but then decided the permitting process didn’t impermissibly infringe on it. It’s the refusal to recognize this right exists that should offend anyone who loves freedom.

The Second Amendment declares the right exists when it prohibits that right from being infringed, but the 9th Circuit ignored this. When the U.S. Supreme Court decided the Heller case not long ago, they made it crystal clear that the right to bear arms included a right of self-defense, which meant the Second Amendment protected that right from being unlawfully infringed just like it says. It doesn’t mean it can’t be regulated – it just means it can’t be eliminated. In the Peruta case, San Diego County and the State of California eliminated the right by banning Peruta from lawfully carrying a firearm for self-defense – either openly (with the outright ban) or concealed (by refusing to give him a permit). The only way the government can do this is if the right doesn’t exist, which is what the 9th Circuit said. That rule now applies to everyone who lives there.

The Peruta decision should trouble Americans for lots of reasons. When government refuses to recognize a right the U.S. Supreme Court has already ruled exists, as happened here, the Constitution has nothing to protect, and the government in turn then has no limit to its power. Whether this case gets appealed, and if so whether the U.S. Supreme Court agrees to hear it is unknown; but if they do, the implications to freedom are obvious as is the selection of the 9th justice who may be the deciding vote. In nine western states, the government is now permitted to ban its citizens from carrying concealed firearms for self-defense. Benjamin Franklin said long ago that if you make yourselves sheep, the wolves will eat you. Bon appétit. For questions regarding the Peruta decision, or Second Amendment generally, contact Todd A. Harpst at Harpst Ross – Business Lawyers for the Construction Industry - at tharpst@harpstross.com or by phone at 330-983-9971.

Our Strength is with our Clients

Our decades of combined experience representing business people means we have your legal needs covered.